Citation Nr: 9836642
Decision Date: 12/16/98 Archive Date: 12/30/98
DOCKET NO. 97-02 215 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to service connection for carcinoma of the
tongue, claimed as due to exposure to Agent Orange.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The veteran and his wife
ATTORNEY FOR THE BOARD
Scott Craven
INTRODUCTION
The veteran had active military service from August 1968 to
October 1971.
In March 1983, the RO denied the veteran’s claim of service
connection for residuals due to exposure to Agent Orange.
However, the veteran’s claim did not involve a claim of
service connection for squamous cell carcinoma of the tongue.
In addition, the veteran’s present claim of service
connection due to Agent Orange exposure asserts rights which
did not exist at the time of the prior claim, due to
regulatory changes in Agent Orange policy and is therefore a
different claim. Spencer v. Brown, 17 F.3d 368, 372 (Fed.
Cir. 1994) (quoting Spencer v. Brown, 4 Vet. App. 283, 288-89
(1993)); See also Routen v. West, 142 F.3d 1434 (Fed. Cir.
1998). Because of the change in regulation, the veteran is
entitled to a de novo review of his claim of service
connection based on the entire evidentiary record.
The Board of Veterans' Appeals (Board) received this case on
appeal from a September 1996 decision of the RO.
REMAND
The veteran contends, in essence, that service connection is
warranted for squamous cell carcinoma of the tongue, due to
claimed exposure to Agent Orange in service. He also claims
that he has non-Hodgkin’s lymphoma.
In May 1996, private medical records from the University of
Pittsburgh Medical Center revealed a pathology report which
diagnosed the veteran, in part, with invasive squamous cell
carcinoma of the posterior tongue. Metastatic squamous cell
carcinoma was reported to be present in two lymph nodes from
Zone IV with extra capsular spread of tumor. A secondary
carcinoma was reported to have been encroaching upon the wall
of the jugular vein associated with acute abscess. There was
no report of non-Hodgkin’s lymphoma.
In a July 1996 statement, Eugene N. Myers, M.D., reported
that, in May 1996, he had carried out a left radical and
right selective neck dissection, a "transhyoid" pharyngotomy
with excision of a tongue base tumor and a tracheotomy of the
veteran. The base of the tongue was reported to show
perineural invasion on pathology.
There was also reported to be carcinoma present in two lymph
nodes in the left neck with extracapsular spread of tumor and
secondary carcinoma encroaching upon the wall of the jugular
vein which was associated with an acute abscess. The veteran
was recommended to undergo chemotherapy and radiation
therapy. Dr. Myers made no report of the presence of non-
Hodgkin’s lymphoma.
During a hearing at the RO in February 1997, the veteran
reported that, in May 1996, he had had surgery on his throat
for cancer. He indicated that his tongue and lymph nodes
which were affected by non-Hodgkin’s lymphoma.
On VA examination in September 1997, the veteran was reported
to have had cervical lymph nodes removed in cancer surgery.
His mouth was reported to have dry mucosa and his throat was
clear. The veteran was diagnosed, in part, with status post
non-Hodgkin’s lymphoma with radical cervical surgery in May
1996. The RO did not address this examination in regard to
the veteran’s claim of service connection.
Where a claim is not well grounded, VA does not have a
statutory duty to assist a veteran in developing facts
pertinent to the claim. While VA may be obligated under
38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1998) to advise a
veteran of evidence needed to complete an application for a
claim, this obligation depends upon the particular facts of
the case and the extent to which the Secretary of the
Department of Veterans Affairs has advised the veteran of the
evidence necessary to be submitted with a VA benefits claim.
Robinette v. Brown, 8 Vet. App. 69 (1995).
Here, the Board finds that the RO must inform the veteran of
his obligation to submit all medical evidence which tends to
support his claim.
The Board also finds that a contemporaneous examination of
the veteran is necessary to take into account the records of
prior medical treatment, including the September 1997 VA
examination. Green v. Derwinski, 1 Vet. App. 121 (1991).
To ensure that all evidence potentially relevant to the
veteran’s claim is obtained, and to ensure full compliance
with due process requirements, the case is REMANDED to the RO
for the following development:
1. The RO should take appropriate steps
to contact the veteran in order to obtain
the names, addresses and approximate
dates of treatment of all health care
providers, VA and private, who have
rendered him medical attention for the
claimed carcinoma. In addition, the
veteran should be requested to submit all
medical evidence which tends to support
his assertions that he had carcinoma due
to Agent Orange exposure or other disease
or injury in service. He should also be
asked to submit all medical records that
support his claim that he has been
diagnosed with non-Hodgkin’s lymphoma.
When the veteran responds and provides
any necessary authorizations, the RO
should obtain all treatment records from
any identified treatment source that have
not already been obtained. All records
obtained should be associated with the
claims folder.
2. The RO should schedule the veteran
for a special VA examination to determine
the nature of the veteran’s claimed
carcinoma. All indicated testing should
be accomplished, and the claims folder
should be reviewed by the examiner prior
to the examination. Based on his/her
review of the case, the examiner should
comment on whether the veteran had non-
Hodgkin’s lymphoma.
3. After completion of all requested
development, the RO should review the
veteran’s claim on the basis of all the
evidence of record. All indicated
development should be taken in this
regard. If the action taken remains
adverse to the veteran, he and his
representative should be furnished with a
supplemental statement of the case. They
should then be afforded a reasonable
opportunity to respond thereto.
Thereafter, the claims folder should be returned to the Board
for further appellate review. No action is required of the
veteran until he receives further notice.
The purpose of this remand is to obtain additional
information concerning the case. The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition of the case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the RO’s to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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